23-1241
6th Cir.Nov 30, 2023Background
- Patino, a pain-management physician, was indicted on six counts including health-care fraud, conspiracy, and money laundering based on a scheme billing Medicare for unnecessary injections, urine tests, and excess procedures, resulting in over $31 million paid by Medicare.
- At a nine-day trial, the government presented testimony and records showing patients were recruited, given minimal or unnecessary injections as a condition of prescription renewals, and clinics billed for more injections/tests than provided; jury convicted Patino on all counts.
- After conviction, trial counsel moved to withdraw; the district court granted withdrawal and new counsel was appointed; Patino then filed a Rule 33(b)(1) motion for a new trial alleging trial counsel was constitutionally ineffective.
- Patino’s Rule 33 motion argued counsel failed to object to witness testimony, failed to call a clinic office manager, and failed to consult with Patino; the motion framed these claims as based on "newly discovered evidence."
- The district court held the claimed evidence was not "newly discovered" because Patino and counsel knew the facts before or during trial, treated the motion as governed by Rule 33(b)(2), found it untimely (not filed within 14 days), denied an evidentiary hearing, and denied the motion.
- On appeal the Sixth Circuit affirmed, holding the district court did not abuse its discretion: the ineffective-assistance claims were not newly discovered and the court permissibly declined an evidentiary hearing; noted §2255 is the usual vehicle for such claims.
Issues
| Issue | Patino's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Patino presented "newly discovered" evidence under Fed. R. Crim. P. 33(b)(1) | The identified failures by trial counsel are newly discovered and justify a new trial | The facts supporting ineffectiveness were known to Patino before/during trial and thus are not "newly discovered" | Not newly discovered; Rule 33(b)(1) not satisfied |
| Whether the district court abused its discretion by denying an evidentiary hearing on ineffective-assistance claims | A hearing is needed to develop the record and evaluate counsel's performance | Patino failed to proffer any evidence that was new or a "modicum" supporting an evidentiary hearing | No abuse of discretion in declining a hearing |
| Whether the Rule 33 motion was time-barred | Motion was properly filed as a Rule 33(b)(1) motion; if not, equitable considerations apply | Because evidence was not newly discovered, motion should be considered under Rule 33(b)(2) and is untimely (not within 14 days) | Treated under Rule 33(b)(2) and held time-barred |
| Proper procedural vehicle for ineffective-assistance claims | Direct appeal may resolve the claim now | Such claims relying on undeveloped trial record are better brought under 28 U.S.C. §2255 | Affirmed; noted §2255 is usually preferable (Massaro) |
Key Cases Cited
- United States v. Munoz, 605 F.3d 359 (6th Cir. 2010) (standard of review for Rule 33 denial and ineffective-assistance as basis for new trial)
- United States v. Bass, 460 F.3d 830 (6th Cir. 2006) (district court discretion not to hold evidentiary hearing on post-trial motion)
- United States v. Seago, 930 F.2d 482 (6th Cir. 1991) (ineffective-assistance evidence is not "newly discovered" when facts were known at trial)
- United States v. Dubrule, 822 F.3d 866 (6th Cir. 2016) (elements required to prevail on Rule 33 newly discovered evidence claim)
- United States v. Garland, 991 F.2d 328 (6th Cir. 1993) (same newly discovered-evidence framework)
- United States v. Pierce, 62 F.3d 818 (6th Cir. 1995) (evidence is not newly discovered if necessarily known to defendant at trial)
- United States v. White, 492 F.3d 380 (6th Cir. 2007) (when an evidentiary hearing is required because facts in motion raise issues of fact)
- United States v. O'Dell, 805 F.2d 637 (6th Cir. 1986) (trial court discretion to decide on supporting evidence or hold hearing)
- Massaro v. United States, 538 U.S. 500 (2003) (§2255 is generally the preferable vehicle for ineffective-assistance claims)